Senate Shenanigans

As its opening act this year, the Senate passed a bipartisan resolution to restrict–but not eliminate–a maneuver known as the “secret hold.” The rules still allow a single senator to anonymously delay urgent legislation.

Even bills commanding overwhelming support can get stopped in their tracks when they face “unanimous consent,” a procedure that allows for the quick passage of noncontroversial legislation. This is an affront to democratic principles.

Just how do secret holds work? A single senator can request a hold on any legislation–without justification or explanation–to his or her party’s leadership. At that point, the legislation can’t move forward unless the Senate Majority Leader intervenes.

Previously, senators could remain anonymous for six days, after which they were required to either lift the hold or be publicly identified. Now, thanks to a joint resolution led by Senators Chuck Grassley (R-IA), Claire McCaskill (D-MO), Ron Wyden (D-OR) and Susan Collins (R-ME), the identities of senators requesting holds will be recorded in the Congressional Record after two days.

The rationale for the rule’s creation was simple and reasonable. The Senate gets extremely busy. During high-volume times, several bills and massive pieces of legislation are simultaneously pushed through the chamber. Often senators need extra time to read a thousand-page bill, gather information, thoroughly consider potential ramifications, and vote in their constituents’ best interest. Guaranteeing short-term anonymity makes sense because senators could be wrongfully labeled as opponents of legislation when they simply want to cast an informed vote.

Unfortunately, senators have heavily abused this process. Working in tag-teams, they would often take turns placing holds every five days, because on the sixth day their identity would be revealed. This tactic allowed both senators to remain anonymous while assuring that the bill would not move forward. This is our democratic process at its worst. Furthermore, if senators decided to place a hold with fewer than five days remaining in the congressional session, they got to kill legislation without stepping forward at all. Effectively, secret holds have become an anonymous way to filibuster.

Case in point: in the last hour of the previous session of Congress, one senator placed a secret hold on the Whistleblower Protection Enhancement Act, which would have have strengthened rights for federal employees when they report waste, fraud, and abuse. This sorely needed legislation was ripe for passage. A similar version of this legislation had passed in the Senate just two weeks prior by unanimous consent. Over the next several days, due to unfounded concerns related to WikiLeaks, the legislation’s scope was reduced to exclude federal intelligence workers.

Other than deletions, not a word was changed from the version the Senate had already approved. Through a rare agreement between former House Speaker Nancy Pelosi (D-CA) and then-Minority Leader John Boehner (R-OH), it also passed the House by unanimous consent. Then a senator–we don’t know who, of course–put a secret hold on it hours later. There’s a strong, ongoing campaign to determine which senator placed the hold. Hopefully, that information will surface.

The overwhelming majority of Congress understands the true value of whistleblowers. Lawmakers came close to strengthening their rights in December. It’s no wonder this legislation enjoyed so much support from both sides of the aisle–it would have curtailed government malfeasance by providing federal whistleblowers with safe channels to speak out. But so far, Congress still hasn’t approved the Whistleblower Protection Enhancement Act.

The Senate has faced heavy criticism for using secret holds. This practice is the antithesis of government accountability and transparency. When the amendment reduced the amount of time from six days to two, some senators claimed good government reforms had triumphed.

Unfortunately, even with that change, lawmakers may still place secret holds just hours before Congress adjourns. There’s nothing to stop future good-government bills from meeting an untimely death at the hands of anonymous senators.

Until Congress sets more reasonable standards for secret holds, individual senators, or a group of them taking turns, can secretly stonewall any bill that’s subject to unanimous consent.

Shanna Devine is Legislative Officer for the Government Accountability Project. www.whistleblower.org